MICHIGAN RULES OF PROFESSIONAL CONDUCT
1.1 – Competence
A lawyer shall provide competent representation to a client. A lawyer shall NOT:
(a) Handle a legal matter which the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it;
(b) Handle a legal matter without preparation adequate in the circumstances; or
(c) Neglect a legal matter entrusted to the lawyer.
· Complexity, specialized nature, lawyer’s general experience, lawyer’s training and experience in the field, preparation and study of the lawyer – usually required proficiency is that of a general practitioner.
· If it is an emergency, lawyer may give advice or assistance where referral would be impractical – still should be limited.
1.2(a)(d) – Scope of Representation
(a) A lawyer shall seek the lawful objectives of a client through reasonably available means permitted by law and these rules.
A lawyer does not violate this rule by:
v Acceding to reasonable requests of opposing counsel that do not prejudice the rights of the client
v By being punctual in fulfilling all professional commitments, or
v By avoiding offensive tactics.
A lawyer shall abide by a client’s decisions whether to accept an offer of settlement or mediation evaluation of a matter.
In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, with respect to a plea to be entered, whether to waive a jury trial, and whether the client will testify.
In representing a client, a lawyer may, where permissible, exercise professional judgment to waive or fail to assert a right or position of the client.
(d) When a lawyer knows that a client expects assistance not permitted by the Rules or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer’s conduct.
Taylor v. Illinois (pg. 69)
Tactical decisions – conducting the mechanics of the trial – are for the attorney and not the client.
Dissent – I agree but this is not a tactical decision – it is attorney misconduct – failure to identify a witness.
Decisions about the objectives of the case (what the case is about) are for the client. How you reach the objectives is up to the attorney.
Decisions absolutely for the client
v Settlement (civil case)[client can give the attorney the authority to settle at or below/above a certain amount] v Plea agreements or waiving a jury trial (criminal case)[attorney makes the basic plea offer – the client gets to decide whether to take it or not – may not occur at all].
v Whether or not to testify is absolutely up to the client.
v Right of appeal (in MI) – whether to pursue is up to the client.
In MI the prosecutor has the power to say “no bench trial” – override the client’s decision to waive a jury trial.
Nichols v. Keller (pg. 79)
Lawyer didn’t inform client about the negligence claim – only informed about the workers’ compensation claim. Liability of lawyer can be based on advice not given, not just bad advice.
1.3 – Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
· Lawyer is not bound to press for every advantage f
ivolous claim. Decision on appeal of issues to be raised should be the client’s decision. Court said it is the attorney’s discretion – valid claims might be lost/page limits for briefs/time limits for oral argument. Dissent – should be personal to the client – should be able to have the control.
Olfe v. Gordon (pg. 94)
First mortgage/second mortgage – attorney got directions from client and didn’t follow them. As a result, the client was surprised and lost money. Court found that the attorney was liable for damages.
Mark Armitage – MI and ABA – explain the matter, keep informed, comply with request for information – new – means of obtaining client’s objectives, promptly inform (informed consent) is required – catching up with MI and broadens a little bit
1.5 – Fees
(a) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee. A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. The factors to be considered in determining the reasonableness of a fee include the following:
The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;